CMU16 v Minister For Immigration and Anor (No.2)
[2017] FCCA 1948
•22 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CMU16 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2017] FCCA 1948 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – protection visa – whether the Tribunal’s decision was unreasonable – whether the Tribunal failed to take critical information into account – whether the Tribunal was biased – whether the Tribunal exceeded its jurisdiction – whether the Tribunal improperly acted upon a s.438 certificate – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 438, 476 |
| Applicant: | CMU16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2417 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 16 August 2017 |
| Date of Last Submission: | 16 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 22 September 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Silva on a direct access basis. |
| Solicitors for the Respondents: | Mr L Dennis MinterEllison |
ORDERS
The third amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2417 of 2016
| CMU16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Administrative Appeals Tribunal (“Tribunal”) made on 11 August 2016 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country.
The applicant arrived in Australia on 9 April 2013 as an unauthorised maritime arrival. The applicant lodged an application for a protection visa on 12 July 2013.
Claims for protection
The applicant claimed to fear harm in Sri Lanka on account of identifying himself as a Tamil, having an imputed political opinion, his Muslim religion, as a business owner, and a failed asylum seeker who departed Sri Lanka illegally.
The applicant alleged that he was harassed by Sinhalese thugs who would come to his shop and asked for money and vandalised property. On one occasion in May 2012, the applicant alleged the thugs came to his shop and a fight broke out, and that the brother of a minister broke his leg. The applicant alleges that the altercation gave rise to the applicant going into hiding and a fear of reprisals. The applicant claimed his father continued to be harassed, threatened and beaten, and the applicant claimed he would be required to pay bribes to the Sri Lankan Police (SLP) to operate his business.
The applicant provided a statement in support of his visa application, which expanded on the reason why the applicant left Sri Lanka. In the biodata interview, it was recorded that the applicant had problems that had been happening there, that the applicant was a hotel owner, and that a boy working for the applicant hit the minister’s youngest brother hit, and that’s when the applicant’s problems started.
Irregular maritime arrival interview
In answer to question 32 on the irregular maritime arrival induction interview, the applicant was asked about the applicant’s problems, and the applicant made reference to having a shop that he was managing and running and people would come and ask him for money for no reason, and one day six people came to his shop. The applicant said that at that time, he was in the kitchen in the back. The applicant alleges they demanded money from the cashier.
The applicant alleges the cashier refused to hand money over to them, and that the cashier said he would consult with the applicant, and if he agreed, the cashier would give the money, but before that, the applicant alleges they attacked the cashier and damaged the shop as well so that the applicant came out of the kitchen. The applicant says he came to the front and asked them “why did you hit him?” The applicant alleges they started beating him as well. The applicant alleges that he had about 10 people working in the shop, and after they hit him, they started beating up everyone in the shop, and one person had his leg broken.
The applicant in response to explaining how this influenced his decision to leave said:
“the guy who had his leg broken…he is the younger brother of a minister. So this guy…he went back and got another 25 people with him. They came to my shop and they destroyed my shop and beat up all of us.”
The applicant alleges that after this incident, he could not run his business any more. The applicant also alleges that they started coming to his house as well. The applicant alleges that people from his village went out and attacked them as well.
The applicant alleged that the reason that he was not allowed to run the shop was because after 53 years it was the first time a Muslim could run a shop in that area and that they did not like it. The applicant alleges the Buddhist monks would come and give him trouble. The applicant alleged he was facing troubles from the very first week that he opened the shop. The applicant alleged that the incident happened around the fifth month of 2012, but he did not remember the date.
The applicant alleged that after the incident, he came home and went to a particular place with a friend from his village. The applicant was asked whether he ever returned to his village and he said no. The applicant alleged he did not return to his village because it is a mix of Sinhalese and Muslim population, and if he goes back, they will definitely inform them and he would get into trouble, so his parents advised him not to return.
Applicant’s statement
The applicant’s statement in relation to why he left the country relevantly referred to him running three restaurants in Sri Lanka, and that one he started running in a particular location in about July 2011. The applicant said he was the only Muslim and Tamil owner of a restaurant in the Sinhalese-dominated area. The applicant alleged that initially Buddhist monks of the area questioned the landlord as to why the landlord agreed to let his shop to a Muslim. The applicant says the landlord told the monk that all he cares about is that the applicant pays the rentals.
The applicant alleged that ever since he took over the shop, every weekend some Sinhalese thugs would come to the shop and ask him for money. The applicant alleges that he was scared of them and he gave them money. The applicant alleged that the shop was vandalised on a weekly basis by the Sinhalese thugs, and that he could not complain to the police because he was a Tamil and they will never provide him with protection.
The applicant referred to the alleged incident in May 2012 in which the cashier of the shop was approached by a group of Sinhalese people led by the younger brother of the local minister of a particular area. The applicant alleges that they asked the cashier for money and attacked him with a bottle. The applicant alleged the cashier came to him as he was working in the kitchen and told him what had happened. The applicant alleges that he went out to see what was happening and saw all of his employees getting beaten up by the group.
The applicant alleges that when the men saw him, they attacked him and slapped him. The applicant alleges that they had to hit back and defend themselves and it turned out to be a big fight in the shop. The applicant alleged that he suffered some injuries due to the glass cuts, and on the other side, the minister’s brother’s leg was fractured. The applicant’s statement alleged that at the end of the confrontation, these people left the shop and made a few phone calls, and after a while around 50 people came in their support.
Those people asked the landlord as to what he suggests they do with the applicant especially as the minister’s brother was injured. The landlord indicated that he would not protect the applicant. They could do whatever they wanted with him. The applicant alleged it was chaos outside his shop, and that the applicant took the chance and escaped through the back door of the shop. The applicant alleged that he saved his employees and paid them their entitlements and escaped with the cashier, who is a friend of his, to a particular location. The applicant said he then went into hiding at the friend’s house.
The applicant alleged that on the same day, people went to his father’s house and asked about him. The applicant alleged that when his father said he did not know where he was, they started beating his father up and told him they would find the applicant and kill him at gunpoint. The applicant alleges that people kept visiting his father’s house and asking about him, so he had to remain in hiding and never return to his village. The applicant alleged that people were very well connected with authorities and that the applicant kept living in hiding.
The delegate’s decision
On 6 November 2014, the delegate refused the applicant’s application for a protection visa and found that the applicant failed to meet the criteria under the Act. In the course of the delegate’s reasons, the delegate did accept that the alleged incident in May 2012 as described by the applicant occurred, and accepted part of the applicant’s details as to the events that occurred after that incident. The delegate expressed some concern as to the perpetrators’ ability to locate the applicant in the area he said he went into hiding.
The delegate also accepted the applicant’s evidence in relation to his father, although expressed having some concerns about the applicant’s claim that the gang members were connected to the police but was not making a finding as to the extent of these persons’ connection with law enforcement.
The delegate made a number of positive findings about the credibility of the applicant. The delegate found that the applicant did not have a well-founded fear of persecution due to his Islamic faith. The delegate was not satisfied that the harm the applicant fears is in relation to a Convention reason. The delegate found the applicant did not have a well-founded fear of persecution.
The delegate made a finding about the ability of the applicant to relocate and found that the delegate was not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk that the applicant would be subject to significant harm.
The Tribunal’s decision
The applicant applied for review on 19 November 2014. On 6 November 2014, a certificate was issued under s.438 of the Act, referring to folios 76 to 79, containing information relating to internal working documents and business affairs, and certifying that the disclosure of the information would be contrary to the public interest, being a certificate under s.438(1)(a) of the Act.
The applicant was invited to attend a hearing by letter dated 29 February 2016 taking place on 14 April 2016. The applicant appeared on that date to give evidence and present arguments and the applicant’s representative attended by telephone. Post-hearing submissions were provided to the Tribunal on 18 April 2016, which were referred to in the Tribunal’s reasons.
Part of those submissions addressed country information in relation to the applicant’s fears as well as addressing the invitation to comment on the assessment of the credibility of the applicant. Those submissions also referred to the situation in Sri Lanka, including problems faced by Tamil or Muslim minorities. Part of the country information also referred to Sri Lankan Muslim population facing increasing hostility from Buddhist Nationalists.
Claims for protection
The Tribunal, in its reasons, identified the applicant’s background in respect of the application for a protection visa. The Tribunal set out the relevant law in an appendix incorporated into the reasons of the Tribunal. The Tribunal summarised the applicant’s claims and evidence.
In that regard, the Tribunal made reference to the applicant claiming that in May 2012, a fight broke out at his shop between Sinhalese thugs and the applicant’s employees but during the fight, a person who is the Minister’s brother, suffered a broken leg, and that the Minister’s brother was part of the gang of thugs. The applicant alleged that as a result of the fight and the brother’s injuries, the applicant abandoned his shop and lived in hiding, fearing that he would be seriously harmed or killed in revenge for the injuries suffered by the Minister’s son. The applicant alleged that the Minister’s brother was so well-connected that the applicant fears not only being harmed by the son’s gang and relatives, but by elements of the Sri Lankan authorities, including the Sri Lankan Police (SLP) with whom the brother’s family had connections and influence.
The Tribunal made reference to the applicant’s claims to refer to past and feared future mistreatment connected with him being a Tamil, a Muslim, and a shop owner.
The Tribunal made reference to materials provided in support of the applicant’s claims, including a letter from the Grand Mosque dated 6 August 2013, a letter from Grama Niadhari, and other documents.
Credibility assessment
The Tribunal identified considerations to be taken into account in determining the credibility of the applicant. The Tribunal noted that the applicant appeared before the Tribunal and that the Tribunal had had the opportunity to discuss the applicant’s claims and reflect on the evidence in the context of all the evidence before it, including the reliable country information to which the Tribunal identified in its reasons. As a result of which, the Tribunal had significant cumulative concerns regarding the truth of central aspects of the applicant’s circumstances. The Tribunal observed that those concerns, together with the assessment of the reliable country information, led the Tribunal not to be satisfied the applicant faces a real chance of serious or significant harm in Sri Lanka in the reasonably foreseeable future for any of the reasons claimed or arising on the evidence, including cumulatively.
Notwithstanding the cumulative concerns, the Tribunal made findings accepting where the applicant was born, that he holds a passport issued in Colombo, that he travelled on trips to the UAE from May 2008 until December 2010 and again in December 2010 and May 2011, and that he returned to Sri Lanka after each trip. The Tribunal accepted the applicant’s education and cessation of studies and his work history as well as where his father resides and where his brother is living.
The Tribunal indicated that it had had significant concerns in relation to the balance of the applicant’s claims. The Tribunal observed that while none of the concerns are singularly determinative of the applicant’s claims for protection, cumulatively, they cast significant doubt on the truth of central aspects of the claims and evidence.
The Tribunal referred to the applicant’s claim in relation to running a particular restaurant. The Tribunal summarised a version of the incident in May 2012. The Tribunal referred to the applicant’s claims in relation to his Tamil ethnicity. The Tribunal considered the applicant to be distinct from a Tamil. The Tribunal did not accept that the applicant was or is viewed in Sri Lanka as ethnically Tamil and did not accept that he was or will be detained, denied protection by Sri Lankan authorities in connection with being ethnically Tamil or in connection with being viewed as ethnically Tamil. The Tribunal did not accept that the applicant considers himself to be ethnically Tamil.
The Tribunal accepted that the applicant is of the Sunni Muslim faith and grew up practicing that faith in Sri Lanka. The Tribunal made reference in detail to the May 2012 incident. The Tribunal made reference to asking the applicant how he knew the minister’s brother’s leg was broken, and the Tribunal observed the applicant’s evidence regarding the Minister’s brother’s broken leg and who broke it and how was, in the Tribunal’s view, evolving, vague and unconvincing.
The Tribunal put to the applicant that none of his evidence answered the Tribunal’s question of how he came to know that the person was the minister’s brother or of which minister he was the brother. The Tribunal referred to discussing with the applicant that the thugs called for reinforcements to come to the shop to support them after the minister’s brother’s leg was broken, and the applicant referring to 50 people coming to the shop to support the thugs. The Tribunal raised with the applicant what those people were doing and found the applicant’s response was vague and contradictory.
The applicant explained that he was unsure as he was hiding inside the shop. The Tribunal made reference to asking the applicant where he was hiding and found the applicant changed his evidence, offering that he was hiding behind the landlord’s house. The Tribunal also referred to how the applicant escaped on a motorbike and what happened to his staff.
The Tribunal asked the applicant to confirm whether he was saying after he left the restaurant on his bike that day he did not see his staff again. The Tribunal noted the applicant responded that is correct. The Tribunal observed that the applicant later varied that evidence, offering that he met them at the father’s village to pay them. The Tribunal found that the applicant’s account was not consistent with the audio recording that was put to the applicant from the interview on 17 October 2014.
The Tribunal referred to the information being relevant as it appears to differ from the evidence of the applicant to the Tribunal that when fleeing his restaurant with the cashier, he and the cashier took nothing with them, and that his landlord arranged vehicles for the applicant’s staff to leave the restaurant and to take them to their homes. The Tribunal referred to the applicant’s oral evidence to the Tribunal that the landlord arranged the three-wheelers to take the staff to their homes. The Tribunal considered the applicant’s responses and found that they did not address or overcome the concerns from the information discussed with the applicant.
The Tribunal made reference to what was said by the applicant during the Department interview as to thugs from the minister’s brother’s gang who are wanting to kill and harm the applicant in revenge, having beaten the applicant’s father maybe on two or three or four occasions, and that his father stopped telling him about this as he does not want the applicant to know, and the applicant does not ask him any more, and that since then, the thugs had gone to his father’s home to ask about him and pull at his father’s collar and yell at him. The Tribunal made reference to that evidence contradicting the applicant’s oral evidence that his father was beaten only once by thugs in May 2012.
The Tribunal made reference to the applicant’s response and what was said in the post-hearing submissions. The Tribunal considered it unconvincing that the applicant cannot be more certain as to the number of times his father was beaten in connection with the applicant’s claimed profile, and considered the applicant’s evidence regarding his father being beaten to be inconsistent and unconvincing. The Tribunal did not accept on the evidence before it that the applicant’s father was beaten, shouted at or otherwise adversely approached by anyone seeking to harm the applicant.
Compounding the cumulative significant concerns identified by the Tribunal in its reasons, the Tribunal explored with the applicant why he thought he would be personally targeted for revenge by the minister’s brother and his network. The Tribunal referred to the applicant saying that he was the owner of the restaurant where the altercation took place. The Tribunal made reference to the applicant informing the Tribunal that it was the cashier who had broken the minister’s brother’s leg. The Tribunal made reference to asking the applicant why he would be personally targeted for revenge if it was the cashier who broke the brother’s leg, and the Tribunal found the applicant’s evidence varied significantly, with the applicant claiming that the brother thought it was the applicant who broke his leg. When the Tribunal put to the applicant that it could not see any mention of this in his earlier evidence, the applicant said he never mentioned it before because it never came into his mind.
The Tribunal considered it to be a significant and central detail in explaining why the applicant had been or would be targeted for revenge evolved and was mentioned for the first time late in his appearance before the Tribunal in April 2016, almost three years after he lodged his protection visa application. The Tribunal did not accept that the brother thinks the applicant broke his leg or that the applicant believes this to be the case.
The Tribunal also explored with the applicant the allegation that the minister’s brother was very well-connected politically. The Tribunal made reference to the applicant’s explanation about the brother being drunk at the time as to why he had not sought to recover medical expenses and might not have thought about it. The Tribunal said that even if this was the case, it would not explain why the Minister’s brother made no attempt to pursue the applicant legally in the four or so years which had since transpired since the May 2012 incident.
Protection claims assessment
May 2012 incident
The Tribunal, based on the totality of the evidence before it, considered multiple aspects of the applicant’s evidence regarding the fight in his shop in May 2012 to be problematic, unconvincing and lacking in credibility. Considering that evidence overall, the Tribunal was not satisfied that a large-scale brawl described by the applicant took place in his restaurant in May 2012 or at any other time. The Tribunal was not satisfied that a relative of the minister or any other person was injured in such an incident, or that the applicant or any members of his staff have at any time been or been viewed as responsible for any such fight or injuries, or that the applicant has been adversely pursued in connection with such an incident.
The Tribunal did not accept that the applicant had or has any adverse profile with individuals or the SLP, or the Sri Lankan minister/ politician or any other element of the Sri Lanka authorities in connection with those claimed incidents. The Tribunal did not accept that any member of the applicant’s family had been shouted at, threatened, beaten, or otherwise adversely approached in Sri Lanka in connection with any adverse profile held by the applicant in respect of the claimed events of May 2012.
The Tribunal made reference to being mindful of the post-hearing submissions to the effect that the above events had given the applicant an imputed political opinion as his involvement in the May 2012 incident is viewed as an attack on the brother of a Sinhalese politician by a Muslim Tamil. The Tribunal identified that the Tribunal does not accept the applicant is Tamil or that he is perceived as Tamil in Sri Lanka, or that he was involved or perceived to be involved in any incident involving an attack or injury upon the brother of a Sinhalese minister or any other Sinhalese person.
Muslim businessman
The Tribunal then made reference to the significance of the applicant being a Muslim businessman. The Tribunal referred to country information regarding the treatment of Muslims in Sri Lanka. The Tribunal made reference to the applicant’s submissions dated 18 April 2016 that the applicant faces persecution as a member of a particular social group characterised as Tamil Muslim businessmen. The Tribunal made reference to the country information referred to in the submissions.
The Tribunal observed that while it accepted that such incidents did not continue to occur, the information must be assessed in the context of all the evidence before the Tribunal, including the much more recent observations of DFAT dated December 2015, and what the Tribunal accepts of the applicant’s personal and family circumstances in Sri Lanka. The Tribunal made reference to the applicant’s evidence regarding his own and his family’s circumstances in Sri Lanka revealing that the applicant was able to attend a Muslim school and pray in a mosque near home without difficulty in Sri Lanka. The Tribunal also made reference to the applicant helping his father with his business and not experiencing any problems.
The Tribunal made reference to the applicant being able to run and register multiple businesses in his own name, making a healthy profit from those businesses. The Tribunal made reference to the applicant’s claims that intoxicated thugs were a nuisance at those businesses, which the Tribunal accepts on the applicant’s evidence was also that, Sinhalese businesses in the same area experienced similar difficulties. The Tribunal did not accept on the evidence before it that the applicant or his business were targeted for reason of his Muslim religion. The Tribunal did not accept that the applicant’s adverse interactions with intoxicated thugs resulted in serious or significant harm to the applicant at any time when he was in Sri Lanka or that they signal or give rise to a real chance of serious or significant harm to the applicant in Sri Lanka in the reasonably foreseeable future in connection with the applicant being Muslim, even if he continues to run a business such as the hotel.
The Tribunal was not satisfied the applicant, as a Muslim, and/or as a Muslim businessman, face a real chance of serious or significant harm in Sri Lanka in connection with his faith, even if he chooses to open another business on his return to Sri Lanka.
Illegal departee
The Tribunal then made reference to the applicant being an illegal departee and a failed asylum seeker. The Tribunal was not satisfied that there are substantial grounds for believing that the treatment faced by the applicant as a Muslim man who speaks both Tamil and Sinhalese and who departed Sri Lanka illegally gives rise to a real risk of significant harm, as contemplated by s.36(2A) of the Act.
The Tribunal was not satisfied on the material before it that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, he faces a real risk of being arbitrarily deprived of his life, the death penalty being carried out on him, being subjected to torture, being subject to cruel and inhumane treatment or punishment or being subjected to degrading treatment or punishment for any reason claimed or arising on the evidence, including cumulatively.
The Tribunal was not satisfied on the evidence that the applicant has any adverse profile which will be uncovered by the processes to which he will be subjected on return as a failed asylum seeker or that, being a returned failed asylum seeker, singly or in combination, would give rise to differential treatment for a Convention reason, or that the process the applicant faces on return to Sri Lanka as a failed asylum seeker involves, reveals or gives rise to a real risk of serious harm, either at the airport in Sri Lanka, or on the applicant’s return to his home or at any other point in the reasonably foreseeable future in Sri Lanka.
The Tribunal was not satisfied that the evidence before it revealed a real chance of persecution involving serious harm in connection with the applicant’s unsuccessful application for asylum and/or his protracted stay in Australia, either singly or cumulatively with what the Tribunal accepts was the balance of the applicant’s circumstances, in Sri Lanka in the reasonably foreseeable future.
The Tribunal was not satisfied the applicant faced a real risk of significant harm in Sri Lanka in connection with his return as a person suspected or known to have sought asylum in Australia, despite his protracted stay in Australia. The Tribunal was not satisfied the applicant faces a real chance of serious or significant harm as contemplated by the relevant law in Sri Lanka in the reasonably foreseeable future for any of the reasons claimed or arising on the evidence, including cumulatively.
The Tribunal found the applicant did not satisfy the criteria under s.36(2)(a) of the Act and found the applicant failed to meet the criteria under s.36(2)(aa) of the Act.
Proceedings before this Court
The grounds in the third amended application are as follows:
(1) The Tribunal made jurisdictional error in that it made an adverse findings (i) based on its misapprehension of evidence or (ii) where it was unreasonable to make such findings
Particulars
(a) The Tribunal made adverse findings (at CB 238 at [38]-[39]]) using s424AA process based on the non-existent inconsistency. There was no inconsistency between the PV interview and the Tribunal hearing about:
(i) how the three wheelers were organised;
(ii) whether it was to take them to applicant's home;
(iii) whether he and cashier took money with them since it was not specifically put and put too generally in the sense they took anything home.
See PV Transcript Pg 17-22.
(b) Changed his evidence as to where he was hiding - [36] - See transcript - Pg 50 In 26;
(c) Sinhalese businesses in the area experienced similar problems, thus his business was not targeted - [57] ; and
(d) About the issue of [the Minister’s brother’s] leg injury that the applicant's evidence impressed the Tribunal as evolving, vague and unconvincing- [34].
(2) The Tribunal made jurisdictional error in that it failed to take critical information into account in making the decision
Particulars
The following information supportive of the applicant's case were not considered:
(a) country information during the relevant period showing Muslims were targeted in the period that includes May 2012. See CB 251 [3.14- 3.15], CB 252 [3.19- 3.20] and CB 203 to 204;
(b) the applicant's evidence that the Buddhist monk questioned the landlord why the landlord leased the property to the applicant;
(c) The letter from the President of the Mosque. The English version given to the Tribunal appears in the transcript on page 5. It refers to harassment of the people who had political powers; and
(d) the letter from the Grama Niladari (village headman) on page 7 of the affidavit. That he had to face disputes while doing a business. Due to that incident he is living away from the village. See CB 230 at [ 6], and CB 118-121 & 124-125 which are to be replaced with the affidavit of the applicant.
(3) The Tribunal made jurisdictional error in that it was biased/caused apprehension of bias in making the overall credibility findings by failing to consider the whole of the evidence, especially the strengths of the applicant's evidence and focused exclusively on the negatives which were “objectively minor matters of fact”
Particulars
(a) Ignored the following strengths or positives:
(i) level of details and spontaneity of his responses - see Delegates reference;
(ii) applicant opted to respond immediately to the concerns under s424AA- [39];
(iii) it was a large brawl and it would have been difficult to observe all;
(iv) no acknowledgment of any positive or strength of the evidence;
(v) every aspect of evidence was construed against the applicant
(vi) country information around May 2012 not considered to test the truthfulness of the event of May 2012; and
(vii) No explicit balancing of the positives and negatives.
(b) Blowing up the negatives:
(i) How he knows the name of the Minister;
(ii) Putting questions as if it was a memory test and not allowing any flexibility;
(iii) Organising of the three wheelers;
(iv) Whether he met the employees on the day of incident after the incident;
(v) Making findings in a blanket manner beyond what was necessary;
(vi) Whether the cashier was bleeding; and
(vii) No of times the father was beaten.
(c) At [44] the Tribunal recklessly rejected the applicant's claims that a large scale brawl erupted at his restaurant based on minor concerns without considering the comprehensive, spontaneous and detailed evidence of the applicant;
(d) Saying evidence is evolving or not forthcoming where there was no basis for that (Pg 26 In 32-34;
(e) The Tribunal made adverse credibility finding on the basis that it was an employee of the applicant who broke [the Minister’s brother’s] leg and that the applicant as the owner of the restaurant would not be targeted - [43]; and
(f) the Tribunal made credibility finding about the applicant based on the fact that [the Minister’s brother] has not pursued the applicant legally which is unreasonable and shows inability understand the country situation and the factual context of the events that took place -[44].
(4) The Tribunal made jurisdictional error in that its overall credibility findings based on the totality of errors advanced in the Grounds 1 , 2 and 3 above are such that the Tribunal exceeded its jurisdiction.
Particulars
Even if any of the grounds 1, 2 or 3 above on its own does not result in jurisdictional error, the totality of the errors made in assessing the credibility of the applicant are such that it is a manifestly unreasonable decision that should not stand.
(5) The Tribunal acted upon a certificate invalidly issued under s438 of the Migration Act 1958 or alternatively denied the applicant procedural fairness.
Particulars
(a) There was a Certificate issued under s438 of the Act concerning disclosure of certain information.
(b) This Certificate by the Delegate dated 6 November 2014 appears at CB 157.
(c) The Certificate was invalidly issued and/or the Applicant was denied procedural fairness with respect to the granting of the certificate.
(d) Minister for Immigration v Singh [2016] FCAFC 183 determined conclusively that in such a case the applicant was denied procedural fairness.
Consideration
Ground 1
In relation to Ground 1, Mr Silva of counsel took the Court to the court book and the interview transcript in relation to the evidence of the applicant in respect of the matters identified in Ground 1. All of the alleged matters identified by Mr Silva of counsel were findings that were open to the Tribunal on the evidence before the Tribunal and cannot be said to be unreasonable or lack an evident and intelligible justification.
There were obvious inconsistencies in the applicant’s evidence in relation to the incident that occurred in May 2012, including who arranged for the staff to depart in three-wheelers, whether the staff went to the applicant’s home or their home, whether the cashier took money with him or not, as to the applicant hiding, as to the applicant identifying problems with the businesses, and in relation to the applicant’s evidence concerning the injury to the brother of the Minister. None of the matters in Ground 1 of the third amended application identify any misapprehension of the evidence by the Tribunal. None of the matters referred to in the particulars and the submissions oral and written by Mr Silva in that regard make out any unreasonableness in relation to the Tribunal’s findings. Ground 1 fails to make out any jurisdictional error.
Ground 2
In relation to Ground 2, Mr Silva of counsel took the Court to the post-hearing submissions to the Tribunal and to the delegate’s reasons as well as to the documents that were expressly referred to in the Tribunal’s reasons. There is no basis to advance the submission that the Tribunal did not give consideration to the material the subject of the submissions referred to in the Tribunal’s reasons. There is clearly a genuine intellectual engagement by the Tribunal with the applicant’s submissions. The Tribunal is not required to make findings in relation to every piece of evidence before it. The Tribunal made dispositive findings in relation to the applicant’s claims. There is no substance in the assertion that the Tribunal failed to take into account critical information.
In support of part of the grounds in Ground 2, Mr Silva of counsel purported to rely upon a translation of one of the documents that was not before the Tribunal. That translation was said by Mr Silva to have been the subject of an error in failing to correctly identify a further feature of significance in relation to the document. A document that was not before the Tribunal cannot give rise to there being information that the Tribunal failed to take into account. No jurisdictional error is made out by Ground 2.
Ground 3
In relation to Ground 3, Mr Silva of counsel made reference to the transcript of the hearing before the Tribunal, as well as to the findings of the Tribunal. Mr Silva sought to criticise the Tribunal in relation to the conduct of the hearing and the language used by the Tribunal and what Mr Silva advanced was the Tribunal trying to trap the applicant in relation to issues of credibility.
None of the submissions advanced by Mr Silva in this regard have any substance. The transcript reveals that the applicant had a real and meaningful hearing. There is nothing in the conduct of the Tribunal in the asking of questions in the transcript or by reason of the adverse findings by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the determination of the matter on its merits. On the material before the Court, the Tribunal approached its task in the conduct of the review with an open mind reasonably capable of persuasion. No case of bias against the Tribunal as alleged in Ground 3 is made out.
Ground 4
In relation to Ground 4, Mr Silva of counsel sought to advance that, cumulatively, the matters raised in Grounds 1, 2 and 3 gave rise to jurisdictional error or unreasonableness in the adverse findings by the Tribunal. None of the grounds in Ground 1, 2 and 3 are made out, and even considered cumulatively, they do not give rise to any unreasonableness in the decision of the Tribunal. The adverse credibility findings were clearly open and cannot be said to lack an evident or intelligible justification. No jurisdictional error is made out by Ground 4.
Ground 5
In relation to Ground 5, the documents the subject of the certificate were admitted into evidence. The document was an identity document. The applicant’s identity was not in issue before the Tribunal. In the identity document, there are notes that relevantly provide as follows:
In his screening interview ADD2013/492573 - His family make up is described as Father alive, 1 Brother, 2 Sisters and mother deceased. Contrary to other claims which is 2 brothers, 1 sister.
In his PV application Statement of claim he does not return to his house but goes straight to his friend's, In his Arrival interview he did return to his home, as he did in His Screening interview.
In his screening interview His father and Sisters (plural) are living and in the other His older brother and his wife.
Also in the screening interview there is a reference to VNT009 having a wife. “they came with weapons & told my wife that they will kill me with that weapon.”
None of the matters identified in the notes are reflected in the reasoning of the Tribunal adverse to the credibility of the applicant. Notwithstanding that the Tribunal has referred to the totality of the evidence before it, the Court is satisfied that the Tribunal did not have regard to or act upon the material the subject of the certificate. The Court finds that the material the subject of the certificate played no role in the conduct of the review by the Tribunal and was not taken into account by the Tribunal in the adverse credibility findings that it made of the applicant. It is only if the information not disclosed is credible, relevant, and significant that the non-disclosure by the Tribunal in the review process gives rise to a jurisdictional error. This requires consideration of the non-disclosed material at the time of the hearing as procedural fairness is concerned with the process not the outcome.
The adverse credibility findings made by the Tribunal of the applicant in the present case were the subject of rational and cogent reasons, and the documents the subject of the certificate played no role in relation to those findings. Mr Silva of counsel submitted that the information in the notes was adverse to the applicant, and was relevant to the review. Whilst the documents do make observations in relation to the applicant, the Court finds that none of those matters were taken into account by the Tribunal in the determination of the applicant’s credit.
The Court finds, on its face at the time of hearing, the undisclosed information being the internal notes on the identity document were not of kind that a reasonable Tribunal would regard as credible, relevant, and significant.
The Court finds that the document the subject of the certificate was not relevant to the review and that the applicant suffered no practical injustice by reason of the non-disclosure of the certificate or the documents the subject of the certificate. This was a case where there was overwhelming evidence in relation to the Tribunal’s concerns in respect of the applicant’s credibility, and in respect of which the document the subject of the certificate played no part.
The Court is satisfied that the non-disclosure of the certificate and the documents the subject of the certificate did not give rise to any practical injustice in the present case. Further, the Court finds that the documents the subject of the certificate in the present case could not possibly have affected the outcome of the review had they been disclosed to the applicant, and for this further reason, if there was a relevant error, relief should be refused on discretionary grounds.
Conclusion
The third amended application is dismissed.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 22 September 2017
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